By Wally Kennedy

wkennedy@joplinglobe.com

PICHER, Okla. — A lawsuit filed by more than 100 residents of the Picher-Cardin area against the panel that was in charge of the Tar Creek buyout apparently is headed for appeal after a recent rejection in Ottawa County District Court.

J. Dwayne Steidley, a Rogers County judge who was assigned to the case when Ottawa County’s judges recused themselves, sided with the Lead-Impacted Communities Relocation Assistance Trust’s lawyer, Scott Boughton, assistant attorney general in the litigation section of the Oklahoma attorney general’s office.

Boughton, who could not be reached for comment Monday, argued in his motion that the trust has operated within the boundaries of the state statute that created it, and that it did not violate the state Open Meetings Act when it invited non-trust members into its closed-door sessions.

The trust was created to oversee the federal buyout of residential and business property in the former lead and zinc mining field. The Tar Creek Superfund Site is contaminated by acidic mine water and mountains of mining waste called chat, and faces an unsafe risk of cave-ins.

Boughton also said the trust was within its rights to collect insurance settlements from residents who were affected by the May 10, 2008, tornado. The plaintiffs’ lawyers, Jeff Marr and John Wiggins, of Oklahoma City, argued that the tornado victims with insurance were treated unfairly when compared with those without insurance, and that they were denied due process.

Steidley, in his decision to grant summary judgment to the defendants, agreed with Boughton’s arguments.

Boughton also argued that buyout residents do not have standing to challenge the trust because they have been bought out. Steidley said it was his opinion that the residents do have standing.

Appeal planned

Neither Wiggins nor Marr could not be reached for comment Monday. Wiggins, in a Nov. 20 letter to a Picher resident who is connected to the lawsuit, said, “We believe that it is in the residents’ best interest that the judge’s rulings be tested on appeal for validity.”

The residents’ lawsuit, filed earlier this year, alleged that many of those who have been bought out lost thousands of dollars when the Lead-Impacted Communities Relocation Assistance Trust and its appraisal companies “low-balled” the value of their properties.

Mark Osborn, a Miami physician who serves as chairman of the trust, could not be reached for comment Monday. Trust officials have said previously that the majority of Picher’s relocated residents received fair deals or they would not have accepted the buyout offers from the trust.

Steidley was asked by the plaintiffs to decide whether a state law that created the trust and made it immune from judicial review is constitutional. Lawyers for the plaintiffs cited several precedents in state law that say every public trust using public money in Oklahoma must be subject to judicial accountability. By denying plaintiffs access to the courts, the plaintiffs’ lawyers said, the residents were denied due process.

Steidley, in his decision, said “the reality of this statute is that it seeks to shield the trust from liability,” and that there is precedence for that in Oklahoma law.

The plaintiffs also challenged the constitutionality of a state statute that permitted the trust to appropriate private insurance payments from Picher residents in the aftermath of the 2008 tornado. That statute, the plaintiffs’ lawyers argued, took property from insured residents without due process and in violation of their right to equal protection and treatment by the trust when compared with the way the trust treated uninsured residents.

Extortion alleged

The lawyers for the plaintiffs described that effort by the trust as “nothing short of extortion by a public trust” and said the effort “robbed insured residents of their private insurance money for which they, not the trust, had paid premiums.”

In addition, the court was asked to look at whether the trust violated Oklahoma’s Open Meetings Act by permitting the buyout contractors and a state employee — J.D. Strong, Oklahoma’s secretary of the environment — to attend closed-door sessions of the trust in which property values were assigned. Steidley sided with the defendants, saying the trust could invite anyone it wanted into a closed-door meeting. The plaintiffs argued that state law permits only trust members, the trust’s attorney and the trust’s immediate staff to enter those meetings.





Separate litigation



The decision in Ottawa County has no direct impact on a related lawsuit in Tulsa County that involves the trust’s primary appraisal companies, Cinnabar and Van Tuyl, and several insurance companies that worked with the appraisal companies after the May 2008 tornado. Judge Dana Kuehn recently ruled that those entities do not have immunity from judicial accountability.